Interception and Device

This post is about a recent decision from a federal court in Wisconsin that deals with email interception in violation of 18 U.S. Code § 2511(1)(a). The case is U.S. v. Szymuszkiewicz, 2009 WL 1873657 (U.S. District Court for the Eastern District of Wisconsin 2009) and here is the government’s version of the facts:

[D]efendant, a revenue officer with the IRS, created a `rule’ on his supervisor Nella Infusino's computer, which auto-forwarded to defendant all of Infusino's e-mails. The government presented testimony from Infusino and another IRS employee, Theresa Memmel, that . . . while Memmel was training Infusino on the use of `Outlook’-the e-mail program utilized by the IRS-the two came upon the rule on Ifusino's computer. Memmel and Infusino were shocked . . . and called the computer support department. Infusino . . . did not create the rule or intend for defendant to receive her e-mails. IRS computer specialist David Tietz . . . responded to Infusino's call and viewed the rule, which was active, on her computer. Tietz . . . disabled the rule, then deleted it. Tietz testified that defendant never advised him that he was receiving Infusino's messages, nor did he learn that from his co-workers in tech support.

William Taylor, an investigator with the Treasury Department's Inspector General's Office, testified that he looked into the matter after Infusino discovered the rule. Taylor reviewed data on the IRS's Outlook server, looking for e-mails auto-forwarded by rule, pursuant to which he recovered twenty-one e-mails forwarded from Ifusino to defendant. Taylor also checked defendant's computer hard drive, where he located 116 additional e-mails auto-forwarded from Infusino, all of which had been opened and some of which had been moved to different folders within defendant's Outlook program. . . .

Infusino . . . supervised defendant from 2001 to 2005 or 2006. . . . [and] . . . used a laptop computer, which she carried with her when she visited the officers under her supervision. Infusino never saw defendant access her computer (and she did not provide him with her password), but . . . at times she left the computer unattended in the Racine office where defendant worked. Infusino . . .testified that in 2003 and 2004 issues with defendant's work performance arose. . . .

U.S. v. Szymuszkiewicz, supra.

Szymuszkiewicz was charged with 3 counts of violating § 2511(1)(a), which makes it a federal crime to intercept the contents of electronic communications. He went to trial and moved for an acquittal before the case went to the jury; the judge reserved decision on his motion and sent the case to the jury. After the jury convicted Szymuszkiewicz, he renewed his motion, which the federal judge then considered.

In ruling on the motion, the judge began by noting that to convict Szymuszkiewicz,

the government had to prove (1) that defendant intercepted an electronic communication; and (2) that he did so intentionally. The term `intercept’ means to acquire the contents of any electronic communication through the use of any electronic, mechanical or other device. An `electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, oral or electronic communication. Finally, . . . `intentionally’ means to act deliberately and purposefully; that is, defendant's act had to be the product of his conscious objective rather than the product of a mistake or an accident.

U.S. v. Szymuszkiewicz, supra. Szymuszkiewicz argued that the government had failed to prove beyond a reasonable doubt either that “he used a `device’ to intercept Infusino’s e-mails” or that he “intercepted” the emails.

In his first argument, Szymuszkiewicz contended that § 2511(1)(a) “requires use of a device separate and distinct from the drive and server upon which the communication was received.” U.S. v. Szymuszkiewicz, supra. In making his argument, he relied on two opinions issued in civil suits under the Wiretap Act, of which § 2511 is a part. The federal judge found neither case was relevant here because “both concerned defendants who received information directed by the sender to them; in neither case did the defendants take any action to re-direct to themselves a communication addressed to another.” U.S. v. Szymuszkiewicz, supra. The judge said the defendants in these cases engaged in “passive receipt” of communications, rather than intercepting them.

In the present case, the government did not rely solely on defendant's passive receipt of Infusino's e-mails on his own IRS computer via the IRS server. Rather, the government claimed that he used a device, i.e. Infusino's computer, to create the rule to intentionally effectuate re-direction/interception. He then used his own computer to receive and read the re-directed e-mails.

U.S. v. Szymuszkiewicz, supra. Since Szymuszkiewicz had not cited any cases holding that using two computers to intercept communications does not satisfy the requirements of § 2511(1)(a), the judge held that the government had carried its burden of proving the “use of device” element of the § 2511(1)(a) charges. U.S. v. Szymuszkiewicz, supra.

As I noted earlier Szymuszkiewicz’s other claim was that the government “failed to prove `contemporaneous’ interception of the e-mails.” That argument raises an issue a number of courts have dealt with. The issue arises because § 2511(1)(a) is part of the Wiretap Act, which dates back to 1968. The Wiretap Act was adopted to implement the Supreme Court’s holding, in U.S. v. Katz, that eavesdropping on phone calls is a search under the 4^th Amendment. Congress adopted the Wiretap Act to implement the Katz decision and to add even more requirements than the 4^th Amendment now imposes on wiretapping.

As I’ve noted, about ten years later the Supreme Court held, in Smith v. Maryland, that the 4^th Amendment does not apply to the numbers we dial on our phones or to any other information we share with third parties. The Smith Court relied on an earlier decision in which the Court essentially held that by sharing information with third parties, like banks and phone companies, we lose any expectation of privacy in that information.

So the Katz and Smith cases create the emphasis on “contemporaneousness” when it comes to “intercepting” electronic communications. The issue doesn’t arise for phone calls because the only way you can capture the contents of a phone conversation is to listen in or record it as it occurs. It arises for emails for at least two reasons: One is that we tend to leave read and unread emails stored with our ISP, which suggests they are governed by the Smith rule. The other reason is that unlike phone conversations, emails are not a simultaneous, unitary communication. As the Szymuszkiewicz court explained, they move as discrete packets, each of which is stored by computers as it travels to its final destination, where the packets “are reassembled to form the e-mail message”. U.S. v. Szymuszkiewicz, supra.

Courts have therefore struggled with what it means to “intercept” emails. Some courts have found that the temporary, intermediate storage involved in transmitting an email is enough to take the emails outside the scope of the Wiretap Act. In other words, they’ve held these emails are governed by Smith, not Katz. Szymuszkiewicz’s problem was that in U.S. v. Councilman, 418 F.3d 67 (U.S. Court of Appeals for the First Circuit 2005) (en banc), a federal court of appeals held that “the Wiretap Act applies to e-mail messages in the `transient electronic storage that is intrinsic to the communication process for such communications.’” While that decision was not binding on this federal district court, the judge agreed with the Councilman court’s logic:

Defining . . . `intercept; to generally require contemporaneousness, . . . would permit courts to maintain a distinction between prospective interception at the time of transmission and one-time access to information already received and in storage. . . . Such construction would avoid eliminating the protections of the Wiretap Act based on the transient storage incidental to e-mail communication.

U.S. v. Szymuszkiewicz, supra. The judge then found that the evidence was sufficient to establish that Szymuszkiewicz intercepted the emails that were the basis of the charges:

[He] did not access Infusino's messages on her computer after receipt. Rather, the messages destined for Infusino were auto-forwarded to defendant as soon as they were received on the IRS e-mail server. Further, . . . the e-mails relating to the three counts . . . reflect that they were sent to Infusino and defendant at the same time (accounting for a time zone difference). With respect to Exhibit 57 in particular, Agent Taylor testified that the e-mail was submitted to the server at 2:23:58, a version created for defendant at 2:23:58, and the version so created delivered to defendant at 2:23:58. Thus, the government demonstrated contemporaneous interception.

U.S. v. Szymuszkiewicz, supra. So Szymuszkiewicz lost.

I like this judge’s idea of striking a flexible balance between transmission and storage rather than relying on “a rigid storage/transit dichotomy”. My only concern is the potential uncertainty of a standard that is predicated on “generally” requiring contemporaneousness.